July 03, 2003

American Citizenship Draining Away Through “Citizen Child” Loophole

Thousands of people from around the world will raise their right hands, swear allegiance to the United States, and become proud American citizens this weekend. They will become Americans because they choose to do so, they love what we stand for, and they are willing to renounce any loyalties to all other foreign governments in order to become one of us.

And then there are “Americans” such as Yaser Esam Hamdi. These are “Americans” by accident. “Americans” on paper. “Americans” who invoke their citizenship privileges only when it comes time to save their hides or cash in on government benefits.

Hamdi was born in East Baton Rouge, Louisiana, on September 26, 1980. His parents were both citizens of Saudi Arabia. Hamdi’s father was here on a temporary work assignment as a chemical engineer for the Saudi Arabia Basic Industries Corp., a Saudi government-controlled industrial giant. When Hamdi was three, his family went back to Saudi Arabia.

For the next two decades, Hamdi was raised in the Saudi kingdom. He spoke their language, not ours. He went to their schools, not ours. He embraced their culture, their religion, and their way of life. Not ours.

In late fall of 2001, Hamdi was captured in Afghanistan by our boys. He was armed with a Kalashnikov rifle, fighting as part of a Taliban or al Qaeda unit, which surrendered to Northern Alliance forces. Our government declared him and hundreds of his comrades “enemy combatants” and sent them to Guantanamo Bay for interrogation and detention.

The feds soon discovered that Hamdi had been born in the U.S.A. Press reports and civil-liberties activists last spring decried the cruel fate of this “Yankee Taliban.” Yankee? If Hamdi’s a Yankee, I’m a Mayflower descendant. The captured warrior was transferred to a naval brig in Norfolk, Va., and lawyers quickly claimed Hamdi’s right to counsel as an “American.” His Saudi parents indignantly demanded that their “American” son be freed.

Hamdi got his hearing. In January, the Fourth U.S. Circuit Court of Appeals ruled [PDF] unanimously in Hamdi’s case that American citizens captured on foreign soil can be detained indefinitely as enemy combatants without the usual constitutional protections afforded to citizen-defendants: “For the judicial branch to trespass upon the exercise of the warmaking powers would be an infringement of the right to self-determination and self-governance at a time when the care of the common defense is most critical.”

The panel of Reagan and Clinton appointees noted: "Hamdi is not any American citizen alleged to be an enemy combatant by the government; he is an American citizen captured and detained by American allied forces in a foreign theater during active hostilities and determined by the United States to have been indeed allied with enemy forces."

Left unresolved, however, was whether Hamdi should even be considered an American at all.

As the Friends of Immigration Law Enforcement, a New York-based immigration reform group, noted in a complaint seeking federal court review of Hamdi’s claim to birthright citizenship: “Mr. Hamdi is not an American in any real sense of the word.”

The citizenship clause in the 14th Amendment states: "[A]ll Persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." But FILE argues persuasively that the custom of blanket birthright citizenship is supported neither by the Fourteenth Amendment nor by legal precedent.

American Indians who, as members of foreign tribal governments, were not “subject to the jurisdiction” of the U.S., did not receive birthright citizenship until more than a half-century after the 14^th Amendment was enacted. Moreover, the long-upheld practice of excluding children of foreign diplomats from birthright citizenship shows that the amendment allowed for exclusion of certain U.S.-born children based on the legal status of their parents.

Clearly, the custom of granting automatic citizenship at birth to children of tourists and temporary workers such as Hamdi, tourists, and to countless “anchor babies” delivered by illegal aliens on American soil, undermines the integrity of citizenship—not to mention national security. Originally intended to ensure the citizenship rights of newly freed slaves and their families after the Civil War, the citizenship clause has evolved into a magnet for alien lawbreakers and a shield for terrorist infiltrators and enemy combatants.

If the courts refuse to close the birthright citizenship loopholes, Congress must.

Citizenship is too precious to squander on accidental Americans in Name Only.

Michelle Malkin [email her] is author of Invasion: How America Still Welcomes Terrorists, Criminals, and Other Foreign Menaces to Our Shores. Click here for Peter Brimelow’s review. Click here for Michelle Malkin's website.